Punjab-Haryana High Court
Jarnail Singh And Ors. vs Saudagar Singh on 31 March, 2003
Equivalent citations: (2003)135PLR55
Author: Hemant Gupta
Bench: Hemant Gupta
ORDER Hemant Gupta, J.
1. Challenge in the present revision is to the order passed by the Executing Court dismissing the execution application holding that the decree is a nullity.
2. Brief facts arising out of the present revision is that one Bawa Singh filed a suit to demolish the khal passing through khasra Nos.524/11/1/5-11, 525/15/1/15-17 situated at village Dhanaula Kalan. The said suit was decreed on 23.11.1967. The appeal was accepted and the judgment and the decree was set aside but in regular second appeal the judgment of first Appellate Court was set aside and that of trial court was restored on 7.2.1980.
3. Bawa Singh plaintiff decree holder died on 1.7.1979 during the pendency of second appeal before this court, whereas the legal representatives moved an application to execute the decree passed in favour of Bawa Singh. The learned Executing Court had dismissed the execution application holding that since the legal representatives of the deceased sole plaintiff-appellant were not impleaded as appellants in regular second appeal, therefore, the decree passed by the High Court is a nullity. Consequently, the learned Executing Court dismissed the execution.
4. The learned executing court has erred in law in dismissing the execution application holding that non-impleading of legal representatives may render the decree nullity. As a matter of fact, the decree passed is not rendered nullity on account of non-impleading of legal representatives. It is open to the defendant to raise such question in appeal or revision against the said decree and not in execution application. Rule 22 (2-A) and (2-B) has been incorporated on 13.3.1975 in the Code of Civil Procedure by virtue of amendment made by the High court which reads as under.
"22 (2A) Every advocate appearing in the case who becomes aware of the death of a party to the litigation (where he appeared for him or not) must give intimation about the death of that party to the Court and to the person who is dominus litis.
28. The duty to bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is dominus litis."
5. By virtue of amendment in the Rules in the year 1975, it was obligatory for the defendants to inform the Court about the death of the appellant by virtue of the amendment as mentioned above. Since the defendant-respondent has failed to bring to the notice of the Court the death of the sole appellant, it is not open to the defendants to raise an argument now that the decree is nullity, the defendant has allowed the court to pass a decree. Therefore, the Executing Court was not justified in law in holding that the decree passed is a nullity and cannot be executed.
6. The learned trial court has relied upon A.I.R. 1978 Gujarat 32 to dismiss the execution application holding that the decree passed in ignorance of the death of the appellant is a nullity. Learned Single Judge of Gujarat High Court in case reported as Rad-hakrishan Biharilal v. Chatursingh GovindS ingh Thakar, A.I.R. 1987 Gujarat 220 has taken the same view even though, the earlier judgment of the Gujarat High Court reported in Jivben Lavji Raganath v. Jadavji Devshankar, A.I.R. 1978 Gujarat 32 was not brought to the notice of the Court. With respect, I am unable to agree with the view taken by the Gujarat High Court in the aforesaid judgments. As a matter of fact, the view of Calcutta High Court in Himangshu Bhusan Kar v. Manindra Mohan Baha, A.I.R. 1954 Calcutta 205, Raddulal Bhurmal v. Mahabirprasad Bisesar Kalwar, A.I.R. 1959 Bombay 384 and A.I.R. 1983 Madras 5 is the contrary view to the view taken by the Gujarat High Court. I agree with the view of such high Courts.
7. It has been held in Abdul Azeez Sahib v. Dhanabagiammal and Ors. A.I.R. 1988 Madras 5 relying upon judgments of Calcutta and Bombay High Courts that the decree passed in favour of a dead person is not nullity and the fact of death not having brought to the notice of the court when it passed the decree is only an irregularity and cannot have the effect of making decree void ab initio.
"Where the Court proceeds with the case in ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a nullity. It may no doubt be a Wrong decree, but it will have to be set aside by taking appropriate proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a dead person is not a nullity though a decree passed against a dead person can be construed as a nullity. Even if there is abatement of the suit, that would not make the decree passed in the suit as one without jurisdiction and the executing court is not entitled to refuse to execute the decree on the ground that the plaintiff was not alive on the date when the decree was passed in his favour."
8. In Raddulal Bhurmal and Ors. v. Mahabirprasad Bisesar Kalwar and Ors. A.I.R. 1959 Bombay 384 it has been held as follows:
"If in such a case the court proceeds with the case in ignorance of the fact of the death of a person and passes a decree, that decree cannot be treated as a nullity. It may be a wrong decree but it will have to be set aside by taking appropriate proceedings as would have been the case had the points been raised, but wrongly decided by the court. It cannot be simply ignored nor can the court refuse to make it final. As already pointed out, where a decree is passed by a court certain rights accrue to the party in whose favour the decree has been passed and those rights cannot be set at naught except by following the procedure which is by way of an appeal or a review."
9. The judgment of Bombay High Court in Raddulal's case (supra) was distinguished by Gujarat High Court by observing that that was a case where one of the plaintiffs had died and other plaintiffs were surviving and the decree was passed in favour of the plaintiffs. It is no doubt correct that the Bombay High Court was considering the case where there were more than one plaintiffs but the fact remains that the Division Bench of Bombay High Court held that if the court proceed with the case in ignorance of the fact of the death of a person and passes a decree the decree cannot be treated as a nullity. Such decree will have to be set aside by taking appropriate proceedings.
10. As a matter of fact the Division Bench of Bombay High Court has relied upon a judgment reported in 1924 P.C. 198 counsel wherein it has been held that after a decree has been made, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside.
11. In view of above judgments. I am of the opinion that the decree passed in favour of Bawa Singh by the High Court in the absence of his legal representatives was only an irregularity. It was for the defendants to challenge such decree in appropriate proceedings for getting it set aside on account of the failure of the legal representatives to continue with the suit. Non-impleading of such legal representatives is only an irregularity. In execution the decree cannot be held to be a nullity.
12. Consequently, the order passed by the learned Executing Court is set aside. The Executing Court is consequently directed to execute the decree in accordance with the law. The parties be informed of the decision of the present revision petition as none has appeared on behalf of the parties. No order as to costs.